{ "id": 5679123, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS C. MILNER, Defendant-Appellant", "name_abbreviation": "People v. Milner", "decision_date": "1984-04-19", "docket_number": "No. 3\u201483\u20140304", "first_page": "656", "last_page": "669", "citations": [ { "type": "official", "cite": "123 Ill. App. 3d 656" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "302 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. 2d 18", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937164 ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0018-01" ] }, { "cite": "309 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405202 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0493-01" ] }, { "cite": "122 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3523312 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0013-01" ] }, { "cite": "72 Ill. B.J. 306", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1984, "opinion_index": 0 }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "398 N.E.2d 398", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 1003", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5604277 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/1003-01" ] }, { "cite": "121 Ill. App. 3d 442", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559302 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0442-01" ] }, { "cite": "142 N.E. 164", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1984, "opinion_index": 0 }, { "cite": "310 Ill. 543", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5109576 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill/310/0543-01" ] }, { "cite": "243 N.E.2d 687", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1923, "opinion_index": 0 }, { "cite": "103 Ill. App. 2d 377", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599828 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0377-01" ] }, { "cite": "383 N.E.2d 655", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 93", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3319526 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0093-01" ] }, { "cite": "389 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5578554 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0118-01" ] }, { "cite": "449 N.E.2d 261", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 593", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591957 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0593-01" ] }, { "cite": "431 N.E.2d 1350", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5479691 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0992-01" ] }, { "cite": "309 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 986", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2511142 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0986-01" ] }, { "cite": "410 N.E.2d 1093", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 771", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3172573 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0771-01" ] }, { "cite": "390 N.E.2d 626", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 178", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582536 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0178-01" ] }, { "cite": "426 N.E.2d 1058", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 282", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5499861 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0282-01" ] }, { "cite": "225 N.E.2d 727", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "82 Ill. App. 2d 245", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2559756 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-2d/82/0245-01" ] }, { "cite": "228 N.E.2d 495", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "83 Ill. App. 2d 411", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2556379 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-2d/83/0411-01" ] }, { "cite": "177 N.E.2d 112", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "22 Ill. 2d 592", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2790508 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0592-01" ] }, { "cite": "444 N.E.2d 570", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 733", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5439017 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0733-01" ] }, { "cite": "437 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3019215 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0156-01" ] }, { "cite": "194 N.E.2d 230", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "29 Ill. 2d 315", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2823527 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/29/0315-01" ] }, { "cite": "304 N.E.2d 455", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2463054 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0418-01" ] }, { "cite": "412 N.E.2d 181", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 803", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5538619 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0803-01" ] }, { "cite": "420 N.E.2d 482", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3115878 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0792-01" ] }, { "cite": "297 N.E.2d 310", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2933429 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0591-01" ] }, { "cite": "387 N.E.2d 1230", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 906", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3238532 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0906-01" ] }, { "cite": "343 N.E.2d 489", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "62 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971950 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/62/0448-01" ] }, { "cite": "402 N.E.2d 238", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070395 ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0129-01" ] }, { "cite": "302 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. 2d 39", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937410 ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0039-01" ] }, { "cite": "413 N.E.2d 148", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 429", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3160300 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0429-01" ] }, { "cite": "402 N.E.2d 176", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. 2d 87", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070612 ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0087-01" ] }, { "cite": "385 N.E.2d 396", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3306955 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0181-01" ] }, { "cite": "98 Ill. App. 3d 1021", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8500407 ], "pin_cites": [ { "page": "1027" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/98/1021-01" ] }, { "cite": "104 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5477853 ], "year": 1981, "pin_cites": [ { "page": "841" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/104/0833-01" ] }, { "cite": "35 Ill. 2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378896 ], "pin_cites": [ { "page": "60" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/35/0055-01" ] }, { "cite": "65 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3327399 ], "pin_cites": [ { "page": "531" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/65/0525-01" ] }, { "cite": "355 U.S. 184", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164126 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/355/0184-01" ] }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "pin_cites": [ { "page": "566" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "66 Ill. App. 3d 93", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3319526 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/ill-app-3d/66/0093-01" ] }, { "cite": "71 Ill. App. 3d 118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5578554 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/ill-app-3d/71/0118-01" ] }, { "cite": "114 Ill. App. 3d 593", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591957 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "595" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/114/0593-01" ] } ], "analysis": { "cardinality": 1218, "char_count": 31670, "ocr_confidence": 0.747, "pagerank": { "raw": 4.005615109545958e-07, "percentile": 0.9059784952713459 }, "sha256": "afd5f81b18dc21a1cfdd461314418c6d7b409a4a5decb155471f1269c7a969b7", "simhash": "1:ab64bc0f3b6ead97", "word_count": 5203 }, "last_updated": "2023-07-14T17:44:31.202001+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS C. MILNER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCOTT\ndelivered the opinion of the court:\nThe defendant, Thomas C. Milner, appeals following a jury trial in the circuit court of Peoria County which returned verdicts of guilty for the offenses of murder, involuntary manslaughter, aggravated battery of a child and concealment of a homicide. Judgment of conviction was entered for murder and the defendant was sentenced to an extended term of imprisonment for 46 years. A consecutive sentence of five years was imposed for the offense of concealment of a homicide.\nThe issues presented for review include allegations that: (1) the trial court erred in refusing to suppress defendant\u2019s confession; (2) that evidence of uncharged crimes was improperly admitted over defendant\u2019s objection; (3) that the evidence was insufficient to prove the corpus delicti beyond a reasonable doubt; (4) that defendant\u2019s statement to the police admitting that his son\u2019s death may have resulted from a criminal act was not corroborated by sufficient independent proof of the corpus delicti; (5) that the defendant was improperly sentenced for murder since the jury\u2019s finding of guilt for involuntary manslaughter negated the required mental state for murder; (6) that defendant\u2019s conviction for murder must be reversed since it was not proved beyond a reasonable doubt that defendant knew his acts created a strong probability of death or great bodily harm; and (7) that the trial court erred in refusing to instruct the jury on the issue of negligence.\nThe evidence indicated that on December 9, 1982, at approximately 7 p.m., several police officers went to an apartment occupied by Annette Robinson and the defendant. Ms. Robinson, the defendant and three children were at home. The police remained in the apartment until approximately 8:30 p.m. when they arrested Ms. Robinson and took her to the police station. The children were placed in protective custody.\nWhile at the apartment the police searched for, but failed to locate, the defendant\u2019s son, Shamar Milner. At one point the defendant attempted to leave to purchase medicine but the police told him it would be best if he remained in the apartment. The defendant was not taken into custody but was asked to come to the police station. The police left the defendant in the apartment after he told them that he would come to the station later.\nAt approximately 9 p.m. the defendant arrived at the rear door of the police station carrying a duffel bag. The defendant indicated that the bag contained his son, Shamar. The coroner subsequently examined the bag and found the body of a badly decomposed infant. The defendant was read his Miranda rights, and he agreed to talk to the police.\nThe defendant was taken to an interview room and questioned for 35 minutes. He then accompanied the police back to his apartment and showed them a demolished building where he initially had placed his dead son.\nThe defendant and the police returned to the station where he agreed to make a written statement which began at 11:13 p.m. At 12:06 a.m. the statement was interrupted when the defendant stated that he was tired and could not answer any more questions. The defendant became emotional and started to cry.\nSpecifically, the colloquy was as follows:\n\u201cQ. Why did you leave [the apartment]?\nA. Couldn\u2019t leave him outside.\nQ. Couldn\u2019t leave who outside?\nA. I\u2019m tired, I can\u2019t answer no more. I couldn\u2019t leave my son outside.\u201d\nThe police told the defendant that they would take a break to allow him to compose himself. During the break there was general conversation, the defendant was permitted to relax and was offered coffee and cigarettes. The defendant was also left alone for a few minutes.\nAt approximately 12:15 a.m. the police and their stenographer returned to the interrogation room and the defendant was asked if he felt up to going on with his statement. The defendant replied that he was willing to do so, and he was told that his rights were still in effect.\nThe interrogation resumed and the defendant was questioned until 12:52 a.m. At this point the police conferred with legal counsel and allowed the defendant to read over his statement.\nAt 2:21 a.m. the interrogation resumed after the defendant said he felt up to answering a few more questions. The defendant was again told that his rights were still in effect and could be exercised at any time. He was questioned until 2:36 a.m.\nThe defendant\u2019s statement indicated that around October 15, 1982, he had been trying to teach his 15-month-old son, Shamar, to stand. When the defendant\u2019s initial efforts failed, he tied Shamar to a board to teach him to stand upright. The child began to cry at being restrained so the defendant untied him. However, when the child continued to cry the defendant became angry and shook him two or three times, the last two shakes being hard. The child was then put to bed. During the night the defendant discovered that his son had a fever so he gave him a cool bath and put him back to bed. In the morning the defendant checked his son\u2019s condition and he was dead. The defendant did not tell anyone. He dressed the child and wrapped him in a blanket. He told the child\u2019s mother that he was taking him to his mother\u2019s house.\nThe defendant took his son\u2019s body to an abandoned building where he laid him down and undressed him. He then burned the child\u2019s clothing. However, three or four days later the defendant recovered the body and brought it back to the apartment where it remained in a bag on a shelf in the bathroom until the police arrived December 9. In the interim the defendant burned incense to mask the odor.\nAn autopsy indicated there were no signs of trauma, but due to the degree of decomposition, no cause of death could be found. The coroner\u2019s physician testified that a child of Shamar\u2019s age could be killed by shaking; however, there were other possible causes of death as well.\nEvidence of defendant\u2019s involvement in what were believed to be other offenses was then admitted over defendant\u2019s objection. Specifically, evidence was elicited which indicated that Shamar\u2019s twin sister had suffered a fractured arm and knees in 1981. The defendant had given the police a statement that another child had jumped off a window ledge onto Tamara, Shamar\u2019s twin sister, thereby injuring her. The defendant also admitted shaking the child hard enough to injure her.\nShirley Terry testified that her son Cory had died in 1975 and that the defendant was the child\u2019s father. Cory had been left in the defendant\u2019s care and that he died when the defendant said the child had fallen off his bed. An autopsy indicated that Cory had died from a brain hemorrhage which could have been caused from a fall, but a more common cause for such an injury would be repeated shaking. The autopsy also revealed several healing fractures of Cory\u2019s ribs which had occurred prior to the alleged fall of the child.\nAdditional evidence was introduced which indicated that X rays of Tamara revealed a spiral fracture of the humerus and small chip fractures of both knees. The spiral fracture was in the same area as the one found on Cory, which resulted from twisting force, such as holding a child by his arms and shaking him.\nDr. Shipley, a radiologist at St. Francis Hospital, believed that these injuries were the \u201challmark\u201d of a battered child.\nThe X rays taken of Shamar indicated that he had injuries which were similar to those of Tamara and Cory, i.e., healing rib fractures, chip fracture of left scapula.\nAs previously stated, the defendant\u2019s first allegation of error concerns the trial court\u2019s refusal to suppress the defendant\u2019s confession.\nThe facts and circumstances surrounding the interrogation of the defendant indicate that the defendant voluntarily presented himself at the police station carrying his son\u2019s body in a bag. The defendant had not been taken into custody when the police arrived at the apartment. The defendant was advised of his Miranda rights, which he indicated he understood. The defendant\u2019s statement to the police after the interrogation had begun, i.e., \u201cI cannot answer no more\u201d was made during a period of time when the defendant was emotionally upset due to his son\u2019s death and that he doubted under those circumstances whether he could go on answering questions. The statement must be examined in the factual context of its utterance. See People v. Aldridge (1979), 68 Ill. App. 3d 181, 385 N.E.2d 396, affd (1980), 79 Ill. 2d 87, 402 N.E.2d 176 (defendant indicated, \u201cI think you got enough\u201d held insufficient to constitute invocation of right to remain silent, but merely reluctance to give details).\nWe believe the context of the defendant\u2019s statement here is analogous to that of Aldridge in that it was not a request to terminate questioning but an indication by the defendant that he believed he couldn\u2019t continue to answer questions at that time due to his emotional state.\nThe record indicates that when the defendant was given the opportunity to rest and compose himself, he readily agreed to continue talking to the police. A statement is not to be considered involuntary merely because a defendant is tired. (People v. Byrd (1980), 90 Ill. App. 3d 429, 413 N.E.2d 148; People v. Pittman (1973), 55 Ill. 2d 39, 302 N.E.2d 7.) For these reasons, we believe the trial court\u2019s refusal to suppress the defendant\u2019s confession was correct.\nNext, the defendant contends that the trial court erred in admitting evidence of alleged but uncharged incidents of child abuse to defendant\u2019s children. The defendant contends that the injuries suffered by the children were not established to have resulted from child abuse as opposed to natural causes, and in addition, even if the injuries resulted from child abuse, there was an insufficient showing that the defendant was the child abuser.\nThe defendant correctly argues that evidence of other crimes is inadmissible if it only tends to establish the defendant\u2019s propensity to commit crimes. People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.\nDespite the foregoing policy of protecting the accused against unfair prejudice, several exceptions have been created to the general rule prohibiting evidence of other crimes, i.e., such evidence is admissible if it establishes either motive, intent, identity, absence of mistake or modus operandi. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Although it must be shown that a crime occurred and the accused committed it or participated in its commission, the proof of other crimes need not be established beyond a reasonable doubt. People v. Walters (1979), 69 Ill. App. 3d 906, 387 N.E.2d 1230.\nOver defense objection, the trial court admitted evidence that three of defendant\u2019s children, Shamar included, had all on prior occasions been the victims of child abuse at the defendant\u2019s hands, i.e., injuries derived from the children being severely shaken by the defendant. A limiting instruction (Illinois Pattern Jury Instruction, Criminal, No. 3.14 (2d ed. 1981)) was given which instructed the jury that they could consider these other occurrences for the limited and sole purpose of establishing defendant\u2019s design and knowledge. See People v. Holland (1973), 11 Ill. App. 3d 591, 297 N.E.2d 310 (evidence of other crimes admissible to show general scheme of defendant\u2019s continued course of conduct).\nWithout restating the evidence of alleged child abuse to each child, namely the twins, Shamar and Tamara, and Cory Parker, each had similar injuries and the defendant had admitted shaking Shamar and Tamara hard enough to injure them. Cory\u2019s death occurred without any admissions from the defendant, but the medical evidence tended to contradict the defendant\u2019s version of how Cory died, namely a fall from his bed.\nWhile we are not disposed to say that the evidence established the defendant\u2019s guilt in the other instances of child abuse beyond a reasonable doubt, it is clear that the defendant had an admitted history of either manhandling small children or being the only one present when they died from injuries which were not derived from the defendant\u2019s version of their origin.\nThe prior instances of child abuse were relevant to prove: (1) recklessness, to sustain the charge of involuntary manslaughter (People v. Garcia (1981), 95 Ill. App. 3d 792, 420 N.E.2d 482; People v. Platter (1980), 89 Ill. App. 3d 803, 412 N.E.2d 181); (2) that allegedly defendant knew his act of shaking Shamar created a strong probability of death or great bodily harm, an element required to sustain the charge of murder (People v. Drumheller (1973), 15 Ill. App. 3d 418, 304 N.E.2d 455); (3) corpus delicti, i.e., that Shamar\u2019s death was caused by a criminal agency put into motion by the defendant (People v. Platter), (4) to exclude possible innocent causes for Shamar\u2019s death (People v. Huff(1963), 29 Ill. 2d 315, 194 N.E.2d 230); (5) common design or purpose (People v. Johnson (1982), 107 Ill. App. 3d 156, 437 N.E.2d 436).\nNext, the defendant contends that his convictions for murder, involuntary manslaughter, and concealment of a homicidal death should be reversed because the corpus delicti was not proved beyond a reasonable doubt, i.e., the corpus delicti of a criminal homicide being the fact of death and the criminal agency of another. People v. Kent (1982), 111 Ill. App. 3d 733, 444 N.E.2d 570.\nThe defendant contends that the only element of the corpus delicti proved by the evidence was the fact of death. The defendant argues that it was not shown beyond a reasonable doubt that the defendant\u2019s shaking of Shamar caused his son\u2019s death. Specifically, the defendant argues that although there was medical testimony that a child of Shamar\u2019s age could be killed by shaking, there was no medical evidence which positively concluded that Shamar\u2019s death resulted from the defendant\u2019s shaking him. However, it is well settled that expert testimony is not required to prove the cause of death. (People v. Jones (1961), 22 Ill. 2d 592, 177 N.E.2d 112; People v. Brown (1967), 83 Ill. App. 2d 411, 228 N.E.2d 495; People v. Davidson (1967), 82 Ill. App. 2d 245, 225 N.E.2d 727.) The corpus delicti may be established despite the inconclusiveness of the medical testimony as to the cause of death. People v. Ellison (1981), 100 Ill. App. 3d 282, 426 N.E.2d 1058; People v. Breehon (1979), 72 Ill. App. 3d 178, 390 N.E.2d 626.\nWhen the facts and circumstances of this case are examined in light of the injuries sustained by the decedent, both prior to and immediately preceding his death, the inescapable circumstantial evidence clearly supports the jury\u2019s determination that the child died as a result of the defendant\u2019s actions. The degree of defendant\u2019s culpability (murder or manslaughter) will be addressed later.\nIn addition, the defendant\u2019s subsequent actions of concealment, lying about the child\u2019s whereabouts, hiding the body and burning his clothes, clearly support the fact that Shamar died by criminal as opposed to innocent means. People v. Avery (1980), 88 Ill. App. 3d 771, 410 N.E.2d 1093; People v. Lopes (1974), 17 Ill. App. 3d 986, 309 N.E.2d 108; People v. Watson (1982), 103 Ill. App. 3d 992, 431 N.E.2d 1350.\nFor these reasons, we must also reject defendant\u2019s contention that his statement to the police that his son\u2019s death may have been caused from his criminal acts was not corroborated by sufficient independent proof of the corpus delicti. The medical evidence of the decedent\u2019s injuries, while not conclusive standing alone, clearly corroborated the defendant\u2019s statement that his son died as a result of the defendant\u2019s actions. The trier of fact is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt. People v. Huff (1963), 29 Ill. 2d 315,194 N.E.2d 230.\nNext the defendant contends that the trial court erred in entering judgment on the guilty verdict of murder since the jury\u2019s finding of guilt with respect to the charge of involuntary manslaughter negated the required mental state for murder. (People v. Fox (1983), 114 Ill. App. 3d 593, 449 N.E.2d 261; People v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593; People v. Keith (1978), 66 Ill. App. 3d 93, 383 N.E.2d 655; People v. Bolden (1968), 103 Ill. App. 2d 377, 243 N.E.2d 687; People v. Carrico (1923), 310 Ill. 543, 142 N.E. 164; and People v. Kendricks (1984), 121 Ill. App. 3d 442.) The foregoing citations are concerned with cases which hold that a conviction of manslaughter, whether it be voluntary or involuntary, negates a finding that the defendant was guilty of murder. The cases of Keith, Bolden, and Carrico pertain to the offense of involuntary manslaughter. The basic difference between involuntary manslaughter and murder is the mental state which accompanies the conduct causing the homicide. To sustain a conviction for murder there must be sufficient evidence' from which it can be inferred that defendant either intended to kill or knew of the strong probability of death or great bodily harm. Involuntary manslaughter is established when the acts which caused death are done recklessly and a person acts recklessly. (See People v. Gresham (1979), 78 Ill. App. 3d 1003, 398 N.E.2d 398.) Murder requires specific intent to kill, while involuntary manslaughter is predicated upon evidence showing that an act which caused a death was committed in a reckless manner. The element of recklessness negates any finding of intent necessary to support a conviction for murder.\nWe note that in the dissent filed in this case there is an attempt to circumvent the rule that a finding of guilt as to the crime of manslaughter is tantamount to an acquittal of the offense of murder by making a distinction between the crimes of voluntary and involuntary manslaughter. As we have previously noted, cases cited by reviewing courts have made no such distinction.\nIn the dissenting opinion it is further argued that involuntary manslaughter is a lesser included offense of murder and hence the conviction of the lesser offense should be set aside and the conviction of the graver offense, being murder, should be permitted to stand. In support of this argument the case of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, is cited. We question the applicability of King to the instant case. King is concerned with the imposition of consecutive or concurrent sentences for different offenses arising from multiple acts which are incidental to or motivated by some greater criminal objective. The dissent does not argue that two sentences should be imposed but relies on King in arguing that involuntary manslaughter is a lesser included offense of murder and that the sentence imposed upon the charge of murder by the trial court should be upheld.\nWe acknowledge that the case law on the subject as to whether manslaughter is a lesser included offense of murder has created a murky picture. Some cases have stated that manslaughter is a lesser included offense, while others have referred to manslaughter as a lesser offense, or an offense not being as grave as the offense of murder. In attempting to classify the offenses of manslaughter the language found in the cases has been used quite loosely. Because of the simple fact that murder can be committed only when a person acts intentionally or knowingly, while the commission of manslaughter requires no mental state but is concerned only with conduct, we disagree with the views of the dissent that it is a lesser included offense of murder. (See O\u2019Neill, Murder Least Foul, 72 Ill. B.J. 306 (1984).) The article further states, \u201cIt [voluntary manslaughter] is a crime no one could ever deliberately intend to commit, but is rather an after-the-fact characterization of a defendant\u2019s actions. It is a homicide less serious than murder; yet it is not a lesser-included offense ***.\u201d (Emphasis added.)\nWe are mindful of the recent case of People v. Hoffer (1984), 122 Ill. App. 3d 13. In Hoffer the reviewing court rejected a contention that a manslaughter conviction constituted an implied acquittal of murder. The decision in Hoffer is in conflict with preceding cases. The court in Hoffer attempts to distinguish the case of Stutter since in the latter case an instruction for the offense of murder omitted a requisite element. We are of the opinion that the jury\u2019s verdict in Stutter finding that the defendant was guilty of manslaughter can only be interpreted that the .jury found beyond a reasonable doubt that the defendant had at the time of committing a homicide the requisite elements for manslaughter. Having made this finding, the verdict of the jury negated any possibility that the defendant possessed the specific intent necessary for a conviction of murder. The Hoffer court indicated that in People v. Fox (1983), 114 Ill. App. 3d 593, there is a \u201csilence\u201d as to whether the proper instruction for the offense of murder was given to the jury. The reasoning in Hoffer is strained when it becomes necessary to presume that an erroneous instruction might have been given. The Hoffer court failed to discuss People v. Kendricks (1984), 121 Ill. App. 3d 442, which is in direct conflict with its decision. We have examined all of the authority relied upon by the court in Hoffer and have concluded that the authority cited herein is more compelling and that the defendant\u2019s conviction for manslaughter impliedly results in an acquittal of the charge of murder.\nThe State further argues that despite the foregoing the verdicts returned in the instant case are not inconsistent since the defendant was charged with separate acts of choking the victim (murder and manslaughter counts) and failing to seek medical attention (manslaughter count alone). We find this argument unpersuasive and directly contrary to the precedents cited.\nFor the reasons set forth the judgment of guilty for the offense of murder entered against the defendant and the sentence imposed thereon must be reversed and this case remanded for resentencing for the offense of involuntary manslaughter.\nWe decline to remand defendant\u2019s aggravated battery conviction for resentencing, however, since these acts occurred as the result of the same transaction or occurrence as the involuntary manslaughter. People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.\nFinally, the defendant contends that the trial court erred in refusing to give defendant\u2019s tendered instruction on negligence.\nWe believe the jury was properly instructed based upon the evidence. The issues instruction adequately covered the defense theory in that an instruction which tells the jury that they must find the defendant not guilty if the requisite mental state is lacking is an inverted way of instructing the jury as to the elements of the crime and the State\u2019s burden of proof. People v. Witherspoon (1973), 55 Ill. 2d 18, 302 N.E.2d 3.\nThe evidence in this case indicated that when the defendant shook his son he was angry, that he was aware of his actions, and with conscious disregard (recklessness) for his son\u2019s safety continued to shake him. This was not a case where the defendant inadvertently dropped his son or negligently injured him. The defendant was aware of what he was doing, despite the fact that he may not have been aware of the consequences of his actions.\nThe basic difference between involuntary manslaughter and murder is the mental state which accompanies the homicide. (People v. Gresham (1979), 78 Ill. App. 3d 1003, 398 N.E.2d 398.) The jury\u2019s finding that defendant unintentionally killed his son did not establish, as defendant contends, that he acted unintentionally, only that the result of his intentional actions (his son\u2019s death) was unintentional.\nFor the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed as it pertains to defendant\u2019s conviction for involuntary manslaughter and reversed as it pertains to defendant\u2019s conviction for murder. The case is remanded to the circuit court of Peoria County for resentencing for the offense of involuntary manslaughter.\nJudgment affirmed in part, reversed in part.\nSTOUDER, J., concurs.", "type": "majority", "author": "JUSTICE SCOTT" }, { "text": "JUSTICE HEIPLE\nconcurring in part, dissenting in part:\nI concur with the majority opinion on all issues except for the fifth issue. I do not believe the jury\u2019s finding of involuntary manslaughter negates a finding of the required mental state for murder. Therefore, I dissent.\nIt must be noted at the outset that the cases cited in the majority opinion on this issue stand for two separate propositions, only one of which is directly relevant to the fifth issue. In People v. Keith (1978), 66 Ill. App. 3d 93, the jury was instructed on both the lesser offense of involuntary manslaughter and the greater offense of murder, but returned a verdict of guilty only on the lesser offense. Under such circumstances, courts recognize the silence of the jury concerning the greater offense as an implicit acquittal of the greater offense. Consequently, double jeopardy bars a retrial on the greater offense. (See Green v. United States (1957), 355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221.) The above-cited cases do not apply to the instant case. Here, the jury was instructed on both the lesser offense of involuntary manslaughter and the greater offense of murder. However, the jury returned a finding of guilty on both the lesser and greater offense. There was no silence concerning the greater offense, and, thus, no implied acquittal of the greater offense.\nThe majority opinion also cites People v. Fox (1983), 114 Ill. App. 3d 593, and People v. Stutter (1979), 71 Ill. App. 3d 118. These cases do deal with the question of negation of mental state. However, in Fox and Stutter the defendant was convicted of both voluntary manslaughter and murder. The instant case is distinguishable because the defendant was convicted of both involuntary manslaughter and murder.\nIn Stutter, the jury was instructed on the elements of the crime of voluntary manslaughter, which is defined in subsection (b) of section 9 \u2014 2 of the Criminal Code of 1961. (Ill. Rev. Stat. 1978, ch. 38, par. 9 \u2014 2(b).) Subsection (b) manslaughter occurs where a defendant knowingly kills an individual and, at the time of the killing, the defendant believed the killing was justified, yet that belief was unreasonable. The jury was also instructed on murder. The appellate court found error because the murder instruction was incomplete. The instruction did not include the element \u201cthat the defendant did not believe that circumstances existed which justified the use of force.\u201d Obviously, there is a direct conflict between a finding that the defendant believed the killing was justified (voluntary manslaughter), and a finding that the defendant did not believe the use of force was justified (murder). Consequently, the omission in the murder instruction mandated a reversal of the murder conviction.\nIn Fox, the jury was instructed on the elements of the crime of voluntary manslaughter, which is defined in subsection (a) of section 9 \u2014 2. Subsection (a) manslaughter occurs where a defendant kills while acting under a sudden and intense passion resulting from serious provocation. The jury was also instructed on murder. Citing Stuller, the Fox court held that the murder conviction must be reversed. The Fox court noted that \u201cthe offense of voluntary manslaughter is an acknowledgment by the law of the mitigating effect of human weakness and intense passion in an otherwise unjustified homicide.\u201d (People v. Fox (1983), 114 Ill. App. 3d 593, 595.) In a sense, then, the law recognizes an exception to a murder conviction where passion and provocation, or an unreasonable belief that the killing was justified, can be proved. Consequently, where a jury finds a defendant committed voluntary manslaughter and murder, a court may rectify any legal inconsistency resulting from the multiple convictions by setting aside the murder conviction.\nA finding of involuntary manslaughter, however, does not, likewise, preclude a murder conviction. In the instant case, the jury was instructed on murder as follows:\n\u201cA person commits the offense of murder when he kills an individual if, in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.\u201d\nThe instructions on involuntary manslaughter provided that:\n\u201cA person commits the offense of involuntary manslaughter when he unintentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another.\u201d\nRecklessness was defined as a conscious disregard for a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.\nA comparison of the elements of the murder and involuntary manslaughter instructions above reveals that the two crimes are very similar. Indeed, involuntary manslaughter is considered a lesser included offense of murder. (See People v. Ortiz (1978), 65 Ill. App. 3d 525, 531.) The essential difference between the crimes, as charged here, is that the lesser crime is based upon recklessness, while the greater offense requires knowledge of a strong probability. Yet, the difference between recklessness and knowledge of a strong probability has been recognized as having no sharp dividing line and is one of degree. (See People v. Davis (1966), 35 Ill. 2d 55, 60.) A person can knowingly create a strong probability of death or great bodily harm (murder), and at the same time consciously disregard a risk (reckless conduct) that his acts are likely to cause death or great bodily harm (involuntary manslaughter). Thus, the jury could have reviewed the facts of the instant case and consistently and reasonably found that the defendant\u2019s acts were sufficient to satisfy their instructions on murder and also sufficient to satisfy their instructions on involuntary manslaughter.\nThe defendant was protected from any legal prejudice resulting from multiple convictions by the supreme court\u2019s holding in People v. King (1977), 66 Ill. 2d 551, 566. King held that a defendant cannot be subject to multiple convictions based on the same act, or based on separate acts where an offense is a lesser-included offense of the other. The King court did not state which conviction, the lesser or the greater, must be set aside. Courts have set aside the lesser offense. (See People v. Harris (1982), 104 Ill. App. 3d 833, 841; People v. Dandridge (1981), 98 Ill. App. 3d 1021, 1027.) The trial judge, in the instant case, was apparently aware of the King holding because he only entered the murder conviction against the defendant.\nI believe the jury\u2019s findings were factually consistent and the trial court\u2019s decision not to enter the involuntary manslaughter verdict eliminated any legal inconsistencies. A finding of involuntary manslaughter does not preclude a conviction for murder. Therefore, I dissent from the majority\u2019s decision to reverse the murder conviction.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE HEIPLE" } ], "attorneys": [ "Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "John A. Barra, State\u2019s Attorney, of Peoria (John X. Breslin and Patricia Hartmann, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS C. MILNER, Defendant-Appellant.\nThird District\nNo. 3 \u2014 83\u20140304\nOpinion filed April 19, 1984.\nHEIPLE, J., concurring in part and dissenting in part.\nRobert Agostinelli and Peter A. Carusona, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJohn A. Barra, State\u2019s Attorney, of Peoria (John X. Breslin and Patricia Hartmann, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0656-01", "first_page_order": 678, "last_page_order": 691 }